Embezzlement Of "Taking Advantage Of His Position," The Judicial Determination Discussion

"Advantage of his position of" occupy a very important position in the embezzlement, it is to distinguish between important elements of the crime of corruption and ordinary property-related crimes must be considered. It is because of "taking advantage of his position" boundaries of embezzlement in a prominent place, clearly identify the non-crime, this crime and other crimes, must clarify the boundaries of his office and other conveniences conditions. In fact, the theory of "using his position of" point of view is different, the judicial practice of "using his position of" shall also open to question, and ultimately led to the judicial determination of difficulty.In this paper, two cases anchored to carry out assessment, the article consists of three parts: The first part briefly introduces identified two cases of the basic facts, made the judicial practice of the two cases identified difficulties, namely to facilitate the work and the difficulty of his position to facilitate convenience and identity position to facilitate the identification difficult.The second part discusses in depth, "taking advantage of his position," the meaning. Firstly, the "use" meaning that "the use of" having "self-serving" purpose. Secondly, discussed the "position" of the meaning of this article that the "duty" means should be prescribed by law, authorize or contract or engaged in the management of public affairs management, management of state-owned property, enjoyed legal or actual mandate and assume corresponding responsibilities. It should have the statutory, regulatory, direct, current four major features, and separately with the work, identity comparison. Third, the analysis of the "convenience" of meaning, pointed embezzlement of "convenience condition" is inevitable and duties have direct contact, based on the premise of the existence of its duties. Fourth, he pointed out "position to facilitate" generation approach, namely to facilitate statutory duties generated the conveniences and beyond the scope of the actual post office generated generated. Fifth, discussed "taking advantage of his position" to note several issues: First, "to facilitate the use of work" can produce as taking advantage of the actual position; the second is "to facilitate the use of work" Can the Beyond the scope of the use of his office to produce; the third is "to facilitate the use of the identity of" convenience for the use of the actual position can produce; fourth is "to facilitate the use of identity on" whether to use his office to go beyond the scope generated.The third part is to improve the "advantage of his position of" thinking, first pointed out that according to the definition of embezzlement and "advantage of his position on the" meaning of the defect, and then offered to job-centered definition of the crime of corruption, judicial interpretation clearly "used his position on convenience, " defined in the standard, that " convenience " used his position on the proposal should uphold the concept of statutory crime.In summary, I hope that through the crime of corruption of "taking advantage of his position to" grasp and perfect, will in the future legislation and judicial practice have the interest of coming, according to the law on anti-corruption help.